standard of proof

The standard of proof in English civil and criminal litigation is the legal standard to which a party is required to prove its case. The standard determines the degree of certainty with which a fact must be proved to satisfy the Court of the fact.

In civil cases the standard of proof is the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decides which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely than not.  In civil cases which involve serious allegations such as fraud or dishonesty, the Court will require “clear and convincing” evidence of dishonesty; the standard of proof however remains the same. In such cases, the claimant must provide compelling evidence, but does not reach the heights of criminal cases where the standard of proof is “beyond reasonable doubt”.

In English law, support was found at one time for an intermediate standard of proof, which is reflected by the words “clear and convincing evidence”, “clear, cogent and convincing evidence”. The House of Lords decided that there are two and only two standards of proof in English law, as they are described above and below.  The words used are more of a commentary on the probity of the evidence rather than the standard of proof to which the evidence must satisfy for a party to have its case acceptable by a tribunal of fact.

Standard of Proof - Balance of Probabilities

The claimant has to prove on the balance of probabilities that the defendant was the cause in the action of his claim. For example, if a claimant alleges that the defendant was negligent in his actions, the burden of proof will be on the claimant to prove that it was more probable than not that the defendant acted negligently and if this can be done, the burden will be discharged. If however, the claimant fails to do this, he or she will not succeed in their claim. 

In the case of Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning said the following about the standard of proof in civil cases:

The…[standard of proof]…is well settled. It must carry a reasonable degree of probability...if the evidence is such that the tribunal can say: ‘We think it more probable than not’ the burden is discharged, but, if the probabilities are equal, it is not.

The reason for this standard is that in some cases, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. There are however cases which are primarily civil in nature, but adopt the criminal standard, such as applications for civil contempt of Court, and cases concerning anti-social behaviour.

There are also circumstances where due to the unsatisfactory state of the admissibility of evidence, the outcome of the decision can be problematic.  In these circumstances, it is left to the Judge to decide whether the standard of proof has been satisfied, as was the case in Rhesa Shipping Co SA v Edmonds (“The Popi M”); HL 1985.  

Standard of Proof -  Beyond reasonable doubt

In criminal proceedings, it is up to the Judge to clarify to the jury that it is the duty of prosecution to establish the defendant’s guilt for the claim to succeed. This must be satisfied beyond reasonable doubt and if there is the slightest of doubt as to his guilt created in the minds of the jury, he will be given the benefit of the doubt and will proclaim his innocence.  

There is no set procedure for explaining the standard required. In the case of Woolmington v DPP [1935] AC, Lord Sankey expressly approved the direction to a jury that “the prosecution must prove the case beyond reasonable doubt”.

If we look at murder case, the prosecution must provide evidence which proves beyond reasonable doubt that it was the defendant’s actions that caused the death of the victim and that he had the intention to kill or cause grievous bodily harm.  Once the jury has heard the facts of the case which will be presented by the prosecution, it is up to them to determine whether the evidence proves beyond the doubt of any hypothetical “reasonable person,” that it was the defendant’s actions that caused the victim’s death.

In such a case, the defendant will have the opportunity to present evidence which may cast doubt and undermine the validity of the prosecution’s case, but if the jury find the evidence to show beyond reasonable doubt that it was the defendant’s actions that resulted in the death, they must find him guilty. 

That said, it is not considered an obligation to use the phrase ‘beyond reasonable doubt’ while explaining the level of proof required. As a consequence of the way it has occasionally been presented to the jury, there have been convictions which have been quashed due to the Judge’s misdirection of its interpretation, but in the event that the jury request the Judge’s direction on what beyond reasonable doubt means, the statement in the case of Walters v R [1969], is usually applied:

“A reasonable doubt is that quality of doubt which when you are dealing with matters of importance in your own affairs allows to influence you one way or another”.     

Although there are various authorities which state that guilt must established beyond reasonable doubt, there is an alternative standard that the jury can adopt which is of being “sure” of the defendant’s guilt. Sure does not mean certain, as to require certainty of legal of proof would be to produce absurdity.

Both methods are correct in applying the standard of proof in criminal cases, but more often than not, being sure is more commonly adopted than being be satisfied beyond reasonable doubt.

Closing Comments

Although the standard of proof differs in criminal and civil cases, this does not mean that one method is more advantageous than the other, they are just different mechanisms of standards of proof required to be established by the evidence. In criminal cases, although the standard is of beyond reasonable doubt, it will never be expected of the jury to be able to prove the facts of the case absolutely.

As long as there is no scope for a prudent mind to doubt the events leading to the conviction, that version of the event will sufficiently be held valid. Additionally, in civil cases, just because the evidence is based on the balance of probabilities, it does not mean that the seriousness of the matter in question has not been given the appropriate degree of regard that it should.